5ASR3d20

Series: 5ASR3d | Year: () | 5ASR3d20
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PROGRESSIVE

INSURANCE COMPANY (PAGO PAGO), LTD., Plaintiff,

 

v.

 

SOUTHERN

STAR INTERNATIONAL, INC.,

dba

HONG KONG RESTAURANT, TUTUILA

INTERNATIONAL,

INC.,  NTV ELECTRONICS, INC.,

KENNY

AND HELEN YOUNG, AINOAMA FATA

dba

NOFO’S STORE, AND DOES I-V, Defendants.

 

High

Court of American Samoa

Trial

Division

 

CA

No. 129-99

 

January

29, 2001

 

 

[1]

Individual has no common law right to discovery to extent that discovery materials

are not judicial records or public documents. However, T.C.R.C.P. 26 permits

broad discovery of information that appears reasonably calculated to lead to

admissible evidence.

 

[2]

When abusive discovery is shown, court may issue protective order circumscribing

discovery to protect party from annoyance, embarrassment, oppression, or undue

burden or expense.

 

[3]

Defendants proffered no explanation

as to how subpoenaed information is reasonably calculated to lead to discovery

of admissible evidence inasmuch as information regarding party’s financial

condition or net worth is generally considered irrelevant.  Court found compliance with subpoena

oppressive and unduly burdensome, given sensitive nature of plaintiff’s

financial information and burden of producing requested documents.  Court granted motion to quash subpoena duces tecum and issued protective

order.  Plaintiff’s motion for T.C.R.C.P.

11 sanctions was taken under advisement.

 

Before

KRUSE, Chief Justice, and LOGOAI, Chief Associate Judge.

 

Counsel:

For Plaintiff, Roy J.D. Hall, Jr.

 For Defendants

Southern Star International, Inc., dba Hong 

Kong Restaurant, and Kenny and Helen Young, Paul F. Miller

 For Defendant Ainoama

Fata dba Nofo’s Store, Katopau T. Ainu`u

 

ORDER

ON MOTION TO QUASH SUBPOENA

AND

FOR PROTECTIVE ORDER

 

On

June 5, 2000, Defendant Southern Star International, Inc. (“SSI”) and

Defendants Kenny and Helen Young (“Youngs”) served a subpoena duces tecum ad

testificandum for documents and a deposition on the Bank of Hawaii.[1]  On June 13, 2000, Plaintiff Progressive

Insurance Company (Pago Pago) Limited (“Progressive”) moved to quash the

subpoena, for a protective order and for T.C.R.C.P. 11 sanctions.  On June 19, 2000, the Bank of Hawaii also

filed a motion to quash the subpoena after learning that Progressive objected

to the production of documents.  The Bank

requested that the Court stay production of the requested documents until after

it has ruled upon Progressive’s motion. 

On June 21, 2000, the Court stayed compliance with the subpoena pending

resolution of Progressive’s motion to quash.[2]

 

 

Discussion

 

[1]

An individual has no common law right to discovery material, insofar as those

materials are not judicial records or public documents.  See In re Alexander Grant & Co.

Litigation, 820 F.2d 352, 355 (11th Cir. 1987).  Nonetheless, discovery is provided for by

court rule, which generally provides that “any matter, not privileged, which is

relevant to the subject matter involved in the pending action” is

discoverable.  T.C.R.C.P. 26(b)(1).  The scope of discovery is vastly broad

permitting the discovery of information that “appears reasonably calculated to

lead to the discovery of admissible evidence.” 

Id.

 

[2]

Given its broad scope, if left unbridled, discovery tends to encroach upon the

privacy interests of affected parties, and thus, creates the opportunity for

abuse.  For example, in some cases,

opposing parties no longer use discovery for its intended purpose, and instead

go on a fishing expedition in the name of “discovery” for the sole purpose of

annoying, embarrassing or burdening their opponent.  The protective order, T.C.R.C.P. 26(c), is

the Court’s mechanism for controlling these types of abusive discovery

tactics.  Where “good cause” is shown,

the Court may make certain orders circumscribing discovery which justice

requires to protect a party or person from annoyance, embarrassment,

oppression, or undue burden or expense. 

T.C.R.C.P. 26(c); see also Seattle Times Co. v. Rhinehart,

467 U.S. 20, 35-36 (1984) (prevention of abuse is sufficient justification for

protective order).

 

SSI

and the Youngs seek discovery of all financial statements, loan

documents, month-end statements on all checking, savings, and certificate of

deposit accounts relating directly or indirectly to Progressive and all

affiliated entities including several enumerated companies.  Also, SSI and the Youngs request all

wire transfer instructions involving Progressive Insurance Company for the

period from August 1999 to January 2000, and all non-sufficient funds

notices relating to Progressive for the period of January 1, 1997 to December

31, 1999. 

 

[3]

As a threshold matter, the information sought by SSI and the Youngs must be

“reasonably calculated to lead to the discovery of admissible evidence.”

T.C.R.C.P. 26(b)(1).  SSI and the Youngs

proffered no explanation as to

how the subpoenaed information is “reasonably calculated to lead to the

discovery of admissible evidence.”[3] Id.  Moreover, information regarding a party’s

financial condition or net worth is generally considered irrelevant to the

subject matter of the proceedings.  6 James W. Moore et al., Moore’s Federal Practice ¶ 26.41[3][a]

(3d ed. 1999).  Furthermore, given the

sensitive nature of Progressive’s financial information, and the burden in

producing the requested documents,[4] we further find compliance

with the subpoena oppressive, and unduly burdensome to Progressive. 

 

Again,

we warn counsel for SSI and the Youngs that he is an officer of the Court, and

as such has an ethical duty to be forthcoming with the Court.  What began simply as an interpleader action,

with SSI and the Youngs’ attendant bad faith and punitive damages claims, has

evolved into a fishing expedition by SSI and the Youngs into not only

Progressive’s financial condition, but also that of its affiliated entities.

 

Good

cause having been shown as delineated above, we grant Progressive and the Bank

of Hawaii’s motion to quash the June 5, 2000 subpoena duces tecum ad

testificandum for the Bank of Hawaii, and a protective order is granted to that

extent.  We reserve our ruling on

Progressive’s motion for T.C.R.C.P. 11 sanctions, and continue to this request

under advisement.

 

Order

 

For

the foregoing reasons, and upon good cause shown, the following orders shall

issue:

 

1.

Progressive and the Bank of Hawaii’s motion to quash the June 5, 2000 subpoena

duces tecum ad testificandum for Bank of Hawaii is granted; and

 

2.

A protective order is granted to the extent the June 5, 2000, subpoena duces

tecum ad testificandum is herein quashed, and therefore, may be disregarded.

 

It

is so ordered.

 



[1]  The subpoena

commanded the Bank of Hawaii custodian of records to appear and testify at the

Law Office of Marshall Ashley on June 26, 2000, at 4:00 p.m. and to bring with

him/her the following items:

a) All financial statements relating directly or

indirectly to Progressive Insurance Company (Pago Pago) Limited and all

affiliated entities, including but not limited to, Insurance Company of the

Pacific, Oxford Pacific Insurance, and Progressive Insurance Company (Apia)

Limited;

b) All loan documents relating directly or indirectly

to Progressive Insurance Company (Pago Pago) Limited and all affiliated entities,

including but not limited to, Insurance Company of the Pacific, Oxford Pacific

Insurance, and Progressive Insurance Company (Apia) Limited;

c) All wire transfer instructions involving Progressive

Insurance Company for the period from August 1999 to January, 2000;

d) Month end statements only on all checking,

savings, and certificate of deposit (CD) accounts relating directly or

indirectly to Progressive Insurance Company (Pago Pago) Limited and all

affiliated entities, including but not limited to, Insurance Company of the

Pacific, Oxford Pacific Insurance, and Progressive Insurance Company (Apia)

Limited for the period from August 1997 to the present; and

e) All non-sufficient funds (NSF) notices relating to

Progressive Insurance Company for the period from January 1, 1997, to December

31, 1999.

[2]  The matter was

taken under advisement, and was again brought to the Court’s attention during a

pre-trial hearing held on January 11, 2001.

[3]  On December 8,

2000, SSI and the Youngs filed a supplemental memorandum asserting that the

information sought under subpoena is necessary and relevant to prove an

alter-ego theory of liability.  We are

not inclined to consider this late filing.

[4]  The Bank of

Hawaii explained that there is a great deal of information requested, which

would require a significant dedication of resources to produce.